State v. Roy
| Decision Date | 30 June 1995 |
| Docket Number | Nos. 21095,21469,s. 21095 |
| Citation | 899 P.2d 441,127 Idaho 228 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Fred Dean ROY, Defendant-Appellant. North Idaho, April 1995 Term |
| Court | Idaho Supreme Court |
Jones, Brower & Callery, Lewiston, for appellant. Thomas W. Callery, argued.
Alan Lance, Idaho Atty. Gen.; Michael A. Henderson, Deputy Atty. Gen., Boise, for respondent. Michael A. Henderson argued.
Fred Dean Roy appeals his conviction for operating a motor vehicle while under the influence of alcohol (DUI), a felony offense in this case due to the existence of two prior misdemeanor DUI convictions within five years.
On December 1, 1992, Lewiston police officers pulled over a pickup truck operated by Roy. The officers suspected that Roy was under the influence of alcohol and requested that he undergo certain field sobriety tests. After Roy had performed the tests he was arrested and transported to the Lewiston Police Department where he refused to take a blood alcohol content test. He was charged with felony DUI based upon the existence of two prior misdemeanor DUI convictions. See I.C. § 18-8005 ().
In State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963), this Court announced a procedure to be followed where a criminal defendant is charged under the persistent violator statute (I.C. § 19-2514). In such a case the information must be prepared in two parts, the first setting forth the substantive offense charged, and the second alleging prior convictions. The trial must also be bifurcated. During the first phase, the jury should be read only the first part of the information. The trial should then proceed as if there were no allegations of prior convictions. Only if the jury returns a guilty verdict on the substantive charge should the second part of the information be read and the jury allowed to consider the recidivist charge. Id. at 60, 383 P.2d at 331 (quoting State v. Ferrone, 96 Conn. 160, 113 A. 452, 457 (1921)). This procedure was extended to repeat offender DUI cases in State v. Wiggins, 96 Idaho 766, 536 P.2d 1116 (1975).
The district court followed the Johnson/ Wiggins procedure in this case and held a bifurcated jury trial. Following the substantive phase of the trial, the jury returned a verdict finding Roy guilty of DUI. After the second phase of the proceeding was concluded, the jury found that Roy had two prior DUI convictions within five years of the present charge. Accordingly, the district court entered a judgment convicting Roy of felony DUI. 1
On appeal, Roy contends that the district court violated the Johnson/ Wiggins procedure. During the first phase of the trial, the jury was not directly informed of Roy's prior DUI convictions. However, the first part of the two-part information presented by the prosecution did state that Roy was charged with a felony. This part was, pursuant to I.C. § 19-2101, read to the jury at the beginning of the trial. The district court also gave Jury Instruction No. 19 which incorporated the first part of the information. This instruction likewise referred to the charge by using the words "felony" and "feloniously." Roy did not object to either the information or Instruction 19 at trial. However, a failure to object to a jury instruction at trial does not constitute a waiver of any objection on appeal. State v. Smith, 117 Idaho 225, 229, 786 P.2d 1127, 1131 (1990). Apparently for this reason, Roy focuses exclusively on the giving of Instruction 19.
Roy argues that an astute juror might recognize that because a DUI defendant is charged with a felony rather than a misdemeanor, that defendant must have at least two prior DUI convictions. See I.C. § 18-8005. This, according to Roy, could defeat the purpose of bifurcation. We acknowledge that there is at least a possibility a jury could ascertain that there are prior DUI convictions simply by virtue of describing the current offense as a felony; and thus create exactly the problem the Johnson/ Wiggins bifurcated procedure was designed to alleviate. Therefore, we hold that in a DUI case where the charge is enhanced to a felony due to the existence of prior convictions, the jury should not be informed during the first phase of the trial that the defendant is charged with a felony. Thus, the district court erred in using the terms "felony" and "feloniously" in Jury Instruction No. 19. The question is whether this error requires a reversal. 2
I.C.R. 52 provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." In determining whether an error has affected substantial rights or is harmless, we ask whether it appears, beyond a reasonable doubt, that there was no reasonable possibility that the error contributed to the conviction. State v. Sharp, 101 Idaho 498, 507, 616 P.2d 1034, 1043 (1980) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).
As evidence of the prejudice resulting from Instruction 19, Roy points to a note sent by the jury to the judge during deliberations in the first phase of the trial. The jury requested information on the punishment or the "law on DUIs" as it relates to the first offense, second offense, and third or more offenses. Roy contends that this clearly establishes that the jury was under the impression that he was a repeat offender. While that is certainly one interpretation, it seems unlikely that the jury would inquire about the law relating to a first offense if they were confident that this was not a first offense. Further, in response to the inquiry, the trial court instructed the jury that it had already been given the applicable law. It also admonished the jury, in Instruction No. 15, not to speculate as to the punishment to be delivered upon conviction. If the jury disregarded these instructions, that would constitute juror misconduct. Such misconduct has not been shown by Roy and will not be presumed on appeal. See State v. Fairchild, 121 Idaho 960, 969, 829 P.2d 550, 559 (Ct.App.1992).
Finally, the State presented...
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